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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                               This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 7, 2011
A party may file with the Supreme Court a
A. John Voelker                                                                                                                              petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                                             Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                             and RULE 809.62.
                                                                                                                                             Cir. Ct. No.   2009CV2258
Appeal No.                                                                    2010AP2440
STATE OF WISCONSIN                                                                                                                           IN COURT OF APPEALS
DISTRICT II
CHARLES TSAMARDINOS AND SUZANNE TSAMARDINOS,
PETITIONERS-APPELLANTS,
V.
TOWN OF BURLINGTON,
RESPONDENT-RESPONDENT.
APPEAL  from an  order  of  the  circuit  court  for  Racine  County:
EMILY S. MUELLER, Judge.   Affirmed.
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1                                                                            PER CURIAM.    Charles and Suzanne Tsamardinos have appealed
from an order granting the Town of Burlington’s motion for summary judgment




No.   2010AP2440
and  dismissing  their  petition  against  the  Town.1                                          In  their  petition,  the
Tsamardinoses alleged that the Town had occupied their property by discharging
storm water onto it and using it as a drainage facility, that the Town created a
nuisance and trespassed by allowing water to drain onto their property, and that
the  Town  caused  damage  to  their  property.    Because  we  conclude  that  the
Tsamardinoses’  action  is  time  barred,  we  affirm  the  order  granting  summary
judgment.
¶2                                                                                              The Tsamardinoses own property located at 30821 Cedar Drive in
the Town of Burlington.   The property has a single-family residence and a garage.
According to the Tsamardinoses’ petition, water drains from Cedar Drive, a town
road, and traverses the eastern side of their property until it is deposited in Brown
Lake.   In their petition, the Tsamardinoses alleged that while there has always
been some level of drainage from Cedar Drive across their property, the volume,
scope,  and  nature  of  the  drainage  has  increased.    The  Tsamardinoses  further
alleged that drainage from a subdivision located to the northeast of their property
has added to the drainage from Cedar Drive.
¶3                                                                                              In  their  petition,  the  Tsamardinoses  requested  condemnation
proceedings pursuant to WIS. STAT. § 32.10 (2009-10),2 alleging that they were
entitled  to  compensation  for  inverse  condemnation  because  the  Town  was
occupying their property.   Alternatively, they alleged that they were entitled to
compensation on the ground that the Town’s use of their property for a storm
1  The Tsamardinoses filed their petition against both the Town of Burlington and the
City of Burlington.  The action against the city was dismissed by stipulation of the parties.
2  All references to the Wisconsin Statutes are to the 2009-10 version except as otherwise
noted.
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No.   2010AP2440
water   drainage   facility   constituted   a   taking   of   their   property   without
compensation.   They also alleged that the Town’s use of the property constituted a
nuisance, causing them damage.    In addition, they alleged that the Town was
trespassing  on  their  property  by  diverting  storm  water  onto  it  without  their
permission or consent.
¶4                                                                                         The  Town  moved  for  summary  judgment  on  multiple  grounds,
alleging  that  the  Town  had  not  occupied  or  taken  the  property,  that  the
Tsamardinoses  did  not  provide  notice  of  claim  as  required  by  WIS.  STAT.
§ 893.80(1)(a),  that  the  Town  was  entitled  to  immunity,  and  that  the
Tsamardinoses’ claims were time barred under WIS.  STAT.  §§ 88.87(2)(c) and
893.89(2).    The Tsamardinoses opposed summary judgment and moved for a
finding  that  the  Town  was  occupying  their  property  pursuant  to  WIS.  STAT.
§ 32.10, requesting a referral to the condemnation commission for a determination
of just compensation.
¶5                                                                                         The trial court granted summary judgment on the grounds that the
Town  had  not occupied  the  property as  required for  relief  under  WIS.  STAT.
§ 32.10 and had not taken the Tsamardinoses’ property.    The trial court also
concluded that the Tsamardinoses failed to give notice of claim within 120 days as
required by WIS. STAT. § 893.80(1)(a) and that their claims were barred by statutes
of limitation.   Because we agree that the Tsamardinoses’ claims are time barred by
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No.   2010AP2440
WIS. STAT. §§ 88.87(2)(c) and 893.89(2), we affirm the trial court’s order granting
summary judgment.3
¶6                                                                                                 We review a trial court’s grant or denial of summary judgment de
novo.   Krier v. Vilione, 2009 WI  45,  ¶14,  317 Wis. 2d 288, 766 N.W.2d  517.
Upon review, we apply the same standards as those used by the trial court, as set
forth in WIS. STAT. § 802.08.   Krier, 317 Wis. 2d 288, ¶14.   If the pleadings state a
claim and demonstrate that material factual issues exist, our inquiry shifts to the
moving party’s affidavits or other proof to determine whether a prima facie case
for summary judgment has been presented.   Lambrecht v. Estate of Kaczmarczyk,
2001 WI 25, ¶22, 241 Wis. 2d 804, 623 N.W.2d 751.   If the moving party has
made a prima facie case, the affidavits or other proof of the opposing party must
be  examined  to  determine  whether  there  exist  disputed  material  facts  or
undisputed material facts from which reasonable alternative inferences may be
drawn, sufficient to entitle the opposing party to trial.   Id.   Summary judgment is
warranted when there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.    M&I First Nat’l Bank v. Episcopal
Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995).
¶7                                                                                                 On appeal, as in their petition, the Tsamardinoses contend that storm
water from Cedar Drive traverses through a culvert and runs down their property
until it is deposited in Brown Lake.   As in their petition, they also allege that the
Villa Heights Subdivision 1st Addition adds to the drainage collecting on Cedar
3  Because we conclude that the Tsamardinoses’ claims are time barred, we need not
address the other arguments raised by the parties.   See Sweet v. Berge, 113 Wis. 2d 61, 67, 334
N.W.2d 559 (Ct. App. 1993) (if this court resolves an appeal based on one issue, it need not
decide the other issues).
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No.   2010AP2440
Drive and eventually draining onto their property.   They allege that by its actions,
the Town has incorporated part of their property into its storm water management
system and is using their property for a drainage facility.
¶8                                                                                      In support of their trial court motion and in opposition to the Town’s
motion for summary judgment, the Tsamardinoses relied on two expert reports,
one prepared by Hey and Associates, Inc. (the Hey report) and the other prepared
by Jendusa Design and Engineering, Inc.  (the Jendusa report).    The Hey and
Jendusa reports indicated that the Tsamardinoses’ residence was constructed in the
1930s and that they had lived in it for more than twenty years.   The Hey report
indicated that the water that drains along the east side of the Tsamardinoses’
property comes from a thirteen-acre drainage area, which includes portions of the
Villa Heights Subdivision  1st Addition.    The Hey report stated that when the
subdivision was graded in the mid-1960s, a series of drainage swales along the
roadsides and in the backyards were installed.   The report stated that today the
drainage is directed to a culvert under Cedar Drive, which directs the drainage
onto the Tsamardinoses’ property.   The report further stated that jurisdiction for
the culvert under Cedar Drive and approval of the Villa Heights subdivision and
its associated drainage network resided with the Town and Racine county.
¶9                                                                                      The Jendusa report was dated May 11, 2010, and similarly described
the drainage along the east side of the Tsamardinoses’ property as resulting from
excessive storm water coming through a culvert at the northeast corner of the
property and from drainage along the roadway.   It stated that over the past eight
years, there had been noticeable flooding along the east side of the residence and
stated that during heavy rain, a stream forms in a swale at the east property line.
The Jendusa report also opined that the subdivisions that had been developed in
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No.   2010AP2440
the  past  ten  to  thirteen  years  in  the  drainage  area  discharging  onto  the
Tsamardinoses’ property lacked proper storm water control.
¶10    Based upon this record, we conclude that the trial court properly
granted summary judgment dismissing the Tsamardinoses’ petition as time barred.
WIS.  STAT.                                                                             § 88.87(2)(a)  provides  that  whenever  a  town   “has  heretofore
constructed and now maintains or hereafter constructs and maintains any highway
or railroad grade in or across” any natural watercourse or natural or man-made
channel or drainage course, it shall not impede the general flow of surface water in
any  unreasonable  manner  so  as  to  cause  an  unreasonable  accumulation  and
discharge  of  surface  waters  flooding  or  water-soaking  lowlands.    It  further
provides that “[a]ll such highways and railroad grades shall be constructed with
adequate ditches, culverts, and other facilities as may be feasible, consonant with
sound engineering practices, to the end of maintaining as far as practicable the
original flow lines of drainage.”
¶11    WISCONSIN  STAT.  § 88.87(2)(c)  states  that                                    “[i]f  a                                           …  town  …
constructs and  maintains a  highway or  railroad grade  not in accordance  with
par.  (a), any property owner damaged by the highway or railroad grade may,
within 3 years after the alleged damage occurred, file a claim” with the appropriate
governmental agency.   Section 88.87 applies when an adjacent landowner claims
that  a  town’s  negligent  construction  and  maintenance  of  a  culvert  and  road
shoulder  created  a  channel  of  water  and  water  damage  on  the  landowner’s
property.   See Pruim v. Town of Ashford, 168 Wis. 2d 114, 117, 483 N.W.2d 242
(Ct. App. 1992).   The time limit set forth in § 88.87(2)(c) for bringing a claim
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No.   2010AP2440
based  on  flooding  and  water  damage  runs  from the  date  the  damage  is  first
discovered, and does not begin every day the damage continues.4   Id.
¶12    It  is  undisputed  that  the  culvert  alleged  to  be  the  cause  of  the
Tsamardinoses’ water problems has been in place and unaltered for more than
twenty-four years and that the last repairs or roadwork on Cedar Drive occurred in
1995.   It is also undisputed that the Tsamardinoses’ water problems began more
than three years before they commenced this action.    Pursuant to WIS.  STAT.
§ 88.87(2)(c), the time permitted the Tsamardinoses for seeking relief based on the
discharge of water onto their property via Cedar Drive and the culvert thus expired
long before they commenced this action.   Cf. Pruim, 168 Wis. 2d at 122-23.
¶13    To the extent that the Tsamardinoses’ claims are based on water
runoff and drainage caused by the development of the Villa Heights subdivision,
their claims are also barred.   With some exceptions that are not relevant to this
case, WIS. STAT. § 893.89(2) states:
[N]o cause of action may accrue and no action may be
commenced  …  against  the  owner  or  occupier  of  the
property or against any person involved in the improvement
to real property after the end of the exposure period, to
recover damages for any injury to property … arising out of
any  deficiency  or  defect  in  the  design,  land  surveying,
planning, supervision or observation of construction of, the
construction  of,  or  the  furnishing  of  materials  for,  the
improvement to real property.
4  WISCONSIN  STAT.  § 88.87(2)(c)  (1991-92), which was the version of the statute in
effect at the time Pruim v. Town of Ashford, 168 Wis. 2d 114, 483 N.W.2d 242 (Ct. App. 1992),
was decided, required a landowner to file a claim within ninety days after the alleged damage
occurred.  The current version of the statute provides for a three-year period.
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No.   2010AP2440
¶14    WISCONSIN STAT. § 893.89(1) defines “exposure period” as the ten
years  immediately  following  the  date  of  substantial  completion  of  the
improvement to real property.   The purpose of § 893.89 is to protect individuals
after a certain period of time from liability based upon actions that occur during
their involvement in improving the property.   Kohn v. Darlington Cmty. Sch.,
2005 WI 99, ¶71, 283 Wis. 2d 1, 698 N.W.2d 794.
¶15    The  summary  judgment  record  indicates  that  Villa  Heights
Subdivision 1st Addition was recorded in 1948.   It also indicates that a series of
drainage swales were installed when the subdivision was graded in the mid-1960s.
Because the improvements to the subdivision were thus substantially completed by
the mid-1960s,5 the Town’s exposure period terminated long before this action
was commenced and any claims against the Town for water runoff related to the
subdivision are barred.6
¶16    In reaching this conclusion, we reject the Tsamardinoses’ argument
that, based upon WIS. STAT. § 893.89(4)(c), they were entitled to bring their action
outside the ten-year time limit.   Section 893.89(4)(c) provides that the ten-year
5  The Hey report stated that as the Villa Heights Subdivision developed between 1960
and 2000, each new home added new impervious surfaces, such as rooftops and driveways, which
gradually increased surface water runoff volumes.   However, as noted above, the Hey report also
stated that the subdivision was graded and drainage swales were established in the mid-1960s.
Consequently, the record provides no basis to conclude that the Town’s involvement in approving
or  developing  the  drainage  system  in  the  subdivision  that  allegedly  contributed  to  the
Tsamardinoses’ water problems extended beyond the mid-1960s.
6  WISCONSIN  STAT.  § 893.89  constitutes  a  statute  of  repose  in  actions  for  injuries
resulting from improvements to real property.   Hocking v. City of Dodgeville, 2010 WI 59, ¶19,
326 Wis. 2d 155, 785 N.W.2d 398.   A statute of repose limits the time period within which an
action may be brought based on the date of the act or omission, and therefore may bar an action
before the injury is discovered or before the injury even occurs.   Kohn v. Darlington Cmty. Sch.,
2005 WI 99, ¶38, 283 Wis. 2d 1, 698 N.W.2d 794.
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No.   2010AP2440
statutory bar does not apply to an owner of real property “for damages resulting
from negligence in the maintenance, operation or inspection of an improvement to
real property.”   However, the Tsamardinoses’ claims of water problems are based
on the design, planning, or construction of the culvert, roadway, and the drainage
system in the subdivision, not on the maintenance of these improvements.   Section
893.89(4)                                                                              (c) applies when, after an improvement to real property is substantially
completed, the owner or occupier is negligent in the maintenance, operation, or
inspection of it, thus causing damage.   Hocking v. City of Dodgeville, 2010 WI
59,                                                                                    ¶49,                                                                       326  N.W.2d  155,  785  N.W.2d  398.   “It  does  not  apply  to  proper
maintenance of an improvement when it is the improvement itself that causes the
injury.”    Id.    Because the water problems alleged here arose from the design,
planning,  or  construction  of  the  culvert,  roadway,  and  subdivision  drainage
system, and not from negligent maintenance of the subdivision drainage system by
the Town following its substantial completion, § 893.89(4)(c) is inapplicable to
this case.   See Hocking, 326 Wis. 2d 155, ¶¶47-50.   The Tsamardinoses’ action for
relief based on drainage from the subdivision therefore is barred by § 893.89(2).
The trial court’s order is affirmed.
By the Court.—Order affirmed.
                                                                                       This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                              (b)5.
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